Public Bill Committee

[Frank Cook in the Chair]

Clause 39

Persons suffering from diminished responsibility (England and Wales)

Amendment proposed (26 February): 17, in clause 39, page 24, line 2, after another, insert (V).(Mr. Garnier.)

Question again proposed, That the amendment be made.

Frank Cook: I remind the Committee that with this we are taking the following: amendment 18, in clause 39, page 24, line 3, after D, insert or V.
Amendment 164, in clause 39, page 24, leave out line 5.
Amendment 400, in clause 39, page 24, line 9, at end insert
(1ZA) A person (D) who kills or is party to the killing of another is not to be convicted of murder if D was under the age of eighteen and his developmental immaturity
(a) substantially impaired Ds ability to do one or more of the things mentioned in subsection (1A), and
(b) provides an explanation for Ds acts and omissions in doing or being a party to the killing..
Amendment 165, in clause 39, page 24, leave out lines 14 to 16.
Amendment 401, in clause 39, page 24, line 14, after (1)(c), insert , and subsection (1ZA)(b).
Amendment 402, in clause 39, page 24, line 15, after functioning, insert or Ds developmental immaturity.
Clause stand part.
Amendment 19, in clause 40, page 24, line 24, after another, insert (V).
Amendment 20, in clause 40, page 24, line 25, after D, insert or V.
Clause 40 stand part.

David Howarth: Good morning to you, Mr. Cook, and to the rest of the Committee on what threatens to be a long day. We are discussing the law of murder and whether and to what extent the defence of diminished responsibility should be reformed. The law of murder is not easy to understand. It is a common law crime, with statutory defences. There are fundamental problems with the crime itself without even reaching the defences, which is why the debate is so complex. It would be useful for the Committee to remind itself of what the Law Commission said originally about what we are discussing today. Paragraph 1.8 of its 2006 report states:
The law governing homicide in England and Wales is a rickety structure set upon shaky foundations. Some of its rules have remained unaltered since the seventeenth century, even though it has long been acknowledged that they are in dire need of reform. Other rules are of uncertain content, often because they have been constantly changed to the point that they can no longer be stated with any certainty or clarity.
For the law on the most important serious crime to be in such a state is nothing short of a scandal. The Law Commission goes on to say that under the existing law, the law of murder is both too broad and too narrow, that it catches actions that most ordinary people would think were manslaughter and fails to catch actions that most ordinary people would think were murder but, in fact, legally are manslaughter. I remind the Committee of what the Law Commission said about that. On the category of when the law of murder appears to be broad, paragraph 1.17 of its report states that under the current law the defendant
is liable for murder not only if he or she kills intentionally but also if he or she kills while intentionally inflicting harm which the jury considers to have been serious. In our view, the result is that the offence of murder is too wide. Even someone who reasonably believed that no one would be killed by their conduct and that the harm they were intentionally inflicting was not serious, can find themselves placed in the same offence category as the contract or serial killer.
The Law Commission explains under paragraph 1.24 where the law of murder is too narrow and how people who would generally in public terms be thought to have committed murder end up being convicted of the lesser offence of manslaughter. It states:
The scope of murder is both too broad and too narrow. Where the scope of murder is too narrow, the scope of manslaughter is correspondingly too broad. In particular, the law is too generous to some who kill by reckless conduct, that is those who do not intend to cause serious harm but do realise that their conduct involves an unjustified risk of causing death. The law is too generous in treating all those who realise that their conduct poses a risk of causing death but press on regardless as guilty only of manslaughter.
That is the starting point for our debate. The Law Commission proposed that the law of murder should be reformed. If we reform first the law of murder and what counts as an offence, we can then start to think about the partial defences that have the effect of turning murder into manslaughter. That is what we should have been doing, but we are not doing that at all. We are simply attempting to reform the defences without reforming the underlying offence.
Another important part of the problem is the mandatory life sentence for murderthe issue that dare not speak its name in this debate. Everyone who practises in the criminal courts knows that the real problem is the scope of the mandatory life sentence. The difference between murder and manslaughter is the difference between a mandatory life sentence and an optional one, which is optional at the choice of the sentencing judge. The Law Commission was tasked by the Government, who told it that it was not allowed to say that there should not be a mandatory life sentence, which is the view of many judges. The Law Commission approached the task by asking what the mandatory life sentence should apply to, and to define that as murder in the first degree. Then it asked whether there are murders or homicides that are not murder in the first degree, and to those it would attach not the mandatory life sentence but the optional life sentence, and they would count as murder in the second degree.
If one did thatmurder one, murder two and perhaps murder one, murder two, manslaughterthe defence of diminished responsibility that we are discussing becomes a completely different question. It is not about all the circumstances when one might want the mandatory life sentence not to apply, with an optional life sentence instead. It is only about specific circumstances where murder one would be charged, which is a murder that one wants a mandatory life sentence to apply to. In those circumstances, as one has already made a policy decision that those are cases to which the mandatory life sentence should apply, the scope of the diminished responsibility defencethis also applies to the loss of control defence that we will discuss laterought to be narrow, because it contradicts the underlying polices about what should count as murder one.
Unfortunately, the Government have changed the reformed defences from the Law Commissions work and have put the narrower versions of the defences into the Bill without having reformed the law of murder itself, and it is arguable that that makes no sense at all. The Government need to come back with a complete reform. When the Committee was taking evidence, I tried to get at the underlying policy reasons. The Government seem to intend that more people be convicted of murder, but they need to answer the question, Why? Looking at the particular terms of clause 39, we need to ask the Government precisely what in each case where they are narrowing the defence they intend to achieve by that narrowing.
Diminished responsibility at the moment, before clause 39 reforms it, is not a precise defence. It is deliberately so. Its function is to allow juries to say that people should not be found guilty of murder and should not receive a mandatory life sentence. It speaks of mental abnormality, but a mental abnormality is usually defined by the court as a state of mind different from the ordinary, not as any kind of clinical condition. That mental abnormality has substantially to have impaired the defendants mental responsibility. That is all it isthere is no accurate or precise definition of mental responsibility. It is just left at large and the jury gets to decide what it means in particular cases. There is no strict causation requirementno requirement that the mental abnormality that substantially impaired the defendants mental responsibility should, in some clear sense, have caused the homicide. It is left up to the jury to think about the general idea of responsibility.
What does the clause do? First, it adds to the mental abnormality leg of the definition of diminished responsibility that the mental abnormality should arise from a recognised medical condition. Secondly, instead of the idea of mental responsibility being a broad question for the jury to decide upon, we get a precise definition of what that might mean, and what it can meanunderstanding the nature of the defendants conduct, the ability to form a rational judgment, and exercising self-control. It has become much more precise, but what is the point of it? Thirdly, and one of our amendments deals with this specifically, is the addition to the responsibility concept of a precise notion of causationthat there has to have been causation. In other words, the homicide would not have happened if the mental abnormality, which amounts to a recognised medical condition, had not occurred.
Our amendments are intended to test those changes and to ask the Government what is intended by them. First, I shall address the recognised medical condition. Broadly, that appears to mean that the defendant has to be suffering from something with the label DSM4 in the diagnostic and statistical manual of the American Psychiatric Association. That is what appears to be intended. Why is that? I do not think psychiatrists, in particular, are calling for this change, which means that they will be in court more often giving expert evidence with regard to particular labels to be added to the defendants condition. Why is that necessary?
With regard to the specific list of mental responsibilityunderstanding the nature of the conduct, forming a rational judgment and exercising self-controlwhat is the purpose of that extra specificity? What if there is some other way in which the person should not count as mentally responsible? In particular, there is the issue of mercy killings, which the hon. and learned Member for Harborough raised at our last meeting. If one forms a rational judgment, the paradoxical effect is that the more rational it would appear to carry out such a killing, the less likely one is to qualify for the defence. That appears to be the opposite of the current position. Is the Governments intention to try to ensure that in mercy killing cases, such issues are taken away from the jury, which is instructed through the legal case to find mercy killers guilty of murder rather than manslaughter? At the moment it is rare in a mercy killing case for the verdict to be murder rather than manslaughter.
Finally, I turn to the causation issue. People who represent psychiatrists object to the extra specificity because they say that they cannot tell whether a particular condition caused a particular thing to happen, and they cannot give evidence in court to that effect. They can talk about peoples mental processes, their attitudes and what was happening in general inside that persons head, but they cannot talk about it in the specific terms that seem to be required by clause 39. Why, against expert advice in the legal and medical professions, has the extra specificity been added?
With one exception, I do not want specifically to comment on the Conservative amendments, which raise important issues that I am sure that the Minister will address. Certain drafting problems have been raised, but the point of the amendments is not them but policy questions. However, I would like to put on the record my support for Conservative amendments 400 to 402 about developmental immaturity.
The drafting of the clause raises an anomaly. An addict, who in a sense lives with a developmental immaturity problemin laymans terms, although they are inaccurate, that person might have a chronological age of 40 but a mental age of 10would have that condition taken into account, because it is a recognised medical condition. The trial would continue on the basis that there was a recognised medical condition. However, a child is only covered in the same way. A child of, say, 14 only has as a defence that their developmental condition is such that their mental ageagain using the lay termis less than 14. If they were 10, the age of criminal responsibility, their mental age would have to be less than 10.
The anomaly involves children who are 10 and who have the maturity of a 10-year-old. An adult who acts like a 10-year-old gets that taken into account, but a 10-year-old who acts like a 10-year-old does not. As I understand it, the intention of the amendments is to correct that point and to give children the benefit of being children, without having to say that they are immature for their age.
Returning to the mandatory life sentence, the Law Commission says that the current law is a sort of benign conspiracy. That was confirmed in the evidence session, in which the Director of Public Prosecutions said that he could not see, technically, even under the existing law, how in a lot of cases a jury wanting to show mercy to a defendant could count the offence as manslaughter rather than murder. Quite a lot of jury nullification is going on, by which juries apply not the technical words of the law but their own moral standards. I like that; it goes to the heart of the common law and is how our system should work. In the end, no law should be enforced in this country if 12 ordinary people cannot be persuaded to apply itthe ultimate democratic test of any law. What follows is, simply, that the same thing will happen to clause 39no matter what the Government try to put in the clause, juries will still have their way with the law.

Maria Eagle: Is it the position of the hon. Gentlemans party that the mandatory life sentence should be abolished?

David Howarth: My position is the same as the Law Commissions, that what we should do is to say where the mandatory life sentence should apply, which is in a narrow range of casesalthough in some instances, the Law Commission pointed out that there are some anomalies where it should, but does not, apply now. We start with what we want to define as murder, which gives us the scope of the mandatory life sentence. I would be happy then to have very narrow defences, as under the Bill, because if we have a mandatory life sentence, we should not allow pathways out of itwe have decided that it is mandatorybut then the rest should consist of optional sentences for murder two and manslaughter. I prefer to do that through definitions of offences rather than using slippery defences, as under the Bill.
Returning to the point that I was making, juries will have their way with such defences anyway. If the Government went too far in trying to narrow the defences, all that would happen is that in realitythough not in the world of lawwe would have something like the French system; in France, there is a general rule that extenuating circumstances, as found by the jury, remove the mandatory life sentence. Returning to the Ministers comments, it might well be, after a number of years of trying to renew a set of definitions, that we come to the conclusion that the best thing that we can do is keep up with reality itself and move to something like the French system.

Maria Eagle: It is a pleasure to be back in Committee this morningas the hon. Member for Cambridge has said, we may be here for some time. Given that the clause stand part debate is included in the group of amendments, I shall begin by talking about clauses 39 and 40, which we are debating the stand part of, before moving on to deal with the amendments and some of the points that have been made by the hon. and learned Member for Harborough in moving his amendment.
Clause 39, as Members have mentioned, reforms the law on diminished responsibility, which is a partial defence to murder. The hon. Member for Cambridge gave a brief exposition about the Law Commissions report and his views on it, which has been helpful to the Committee in setting out the wider context of the offence generally, some of the developments that have taken place over the past few years and attempts to look at how to best reform the lawI think everybody admits that the law could do with some reforms.
The partial defence was examined along with other matters in the 2006 report by the Law Commission, called Murder, Manslaughter and Infanticide. It concluded that
The definition of diminished responsibility should be modernised, so that it is both clearer and better able to accommodate developments in expert diagnostic practice.
The Government agree with that view, and the clause is designed to try to do that. It replaces, as the hon. Member for Cambridge has alluded to, the existing definition of the partial defence to murder of diminished responsibility with a new one is based on the concept of an abnormality of the mental functioning arising from a recognised medical condition by amending section 2 of the Homicide Act 1957. The existing partial defence defines diminished responsibility, which the hon. Gentleman has made reference to, as:
such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired [the defendants] mental responsibility for [his or her] acts or omissions in doing or being party to the killing.
The many lawyers in Committee, I think, will remember fondly learning those things at law schoolin some cases, rather longer ago than in others. The Law Commission has two main criticisms[Interruption.] Enough has been said about how long ago it was in my case. The Law Commission has two main criticisms of the partial defence. First, that the defence was not drafted with the needs and practices of medical experts in mind, and secondly that it does not explain what is involved in the substantial impairment of the defendants mental responsibility, which is required for it to succeed. Subsection (1) deals with the first criticism; namely, that the definition of diminished responsibility in the Homicide Act 1957 is not consistent with medical practice. The phrase abnormality of mind is not a psychiatric term, and the permissible causes as set out in the current definition do not represent current thinking on all causes that could give rise to mental impairment. Its meaning has had to be developed by the courts.
The hon. Member for Cambridge is a big fan of the common law. Common law has enormous advantages but also some disadvantages in the way that it develops. The changes that take regard of the concept of a recognised medical condition are to ensure that we replace the existing definition with one that will not have to be developed through time by common law, but that will keep up with developments in medical practice and understanding of the way in which diseases work.

David Howarth: This is an important point, because precisely the same point can be made about the law of murder, which is a common-law offence. As the Law Commission has said, it is such a common-law offence that it is difficult to state what it means with any precision. Why do the Government take that view about the defence of diminished responsibility, but do not hold the same view of the offence of murder in the first place?

Maria Eagle: I explained at the time that we responded to the Law Commissions report and came forward with some of the proposals, which were, of course, consulted on before the production of the Bill. The Law Commissions proposals were somewhat radical, and they did not command total agreement between all stakeholders and users of the system, whom we must get on board to ensure that the system works and is credible. We were therefore not able to reach agreement that led us to believe that we should go forward with the full panoply of restructuring the offence as well as splitting it upas set out by the hon. Member for Cambridgeat this time. However, we believed that it was important to proceed with some of the valuable reforms of the partial defences that are in the Bill. There will be a second stage to our considerations about whether to go forward with some of the other proposals in the Law Commissions report.
All the lawyers, and perhaps others on the Committee, accept that the law sometimes moves in a glacial fashion and does not always speed ahead as fast as the intellectual thought of the Law Commission. We must ensure a general consensus that we are going in the right direction, which was explained at the time of the consultation. We made it clear that we did not intend to go ahead at this stage with the entire proposal for reform, but that reforming the partial defences in this way was a valuable contribution to developments. We undertook to look further at whether the other proposals should be taken forward, in view of experiences arising from the changes, and we are still in that position.
The hon. Gentleman talked about classificatory systems. There are a number of accepted systems that encompass recognised physical, psychiatric and psychological conditions. Foremost among those is the World Health Organisations international classification of diseases, ICD10, as well as, as has been said, DSM4, which is the American Psychiatric Associations diagnostic and statistical manual of mental disordersplease do not test me on that one.
The Government envisage that such accepted classification systems will be used later. If a qualified medical expert gives evidence that, at the time of the killing, a defendant was suffering from a condition included in one of these lists, and the jury accepts that, that part of the test will be met. There is also scope for conditions that are not included in such a list to be deemed recognised medical conditions for the purposes of the test, which addresses one of the concerns alluded to by the hon. Gentleman. Flexibility is important, as it caters for emerging conditions that, while they have not been recognised and put on the classificatory lists, are part way through being recognised and medical people out there are expert at dealing with them. The defence could therefore call a recognised specialist who has had their work peer-reviewed, although it has not quite got on the list. It would then be for the jury to decide whether that met the partial defence requirement.
Subsection (1) provides that a person who kills or who is a party to a killing is not to be convicted of murder if he or she was suffering from an abnormality of mental functioning that arose from a recognised medical condition, which substantially impaired his or her ability to do certain things that are set out under subsection (1)(1A), and which provides an explanation for their acts or omissions in doing things or being a party to the killing. The hon. Member for Cambridge referred to causation. The meaning of the explanation is expanded in subsection (1)(1B), which I shall cover when dealing with the amendments.
The Law Commissions second main criticism of the law is that it refers to the defendant
suffering from such an abnormality of mind...as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.
However, it does not explain what is involved in such a substantial impairment. Subsection (1)(1A) deals with the issue, following the Law Commissions recommendation, by specifying that the abnormality of mental functioning that has arisen from the recognised medical condition must have substantially impaired the defendants ability to do at least one of the following actions: to understand the nature of his or her conduct; to form a rational judgment or to exercise self-control. If that test is not met, the partial defence cannot succeed.
The Government agree with the Law Commission that it is necessary for there to be some causal connection between the abnormality of mental functioning and the killing in order for the partial defence to succeed. It is right for there to be some connection between the condition and the killing, otherwise the partial defence could succeed in cases when the defendants mental condition made no difference to their behaviour, and they would have killed regardless of the medical condition. For that reason, subsection (1)(1B) provides that, for the partial defence to succeed, any such abnormality of mental functioning must have been at least a significant contributory factor in causing the defendant to do as he did. It need not have been the only cause, the main cause or the most important factor, but it must be more than merely trivial. The partial defence cannot succeed when the truth is that the recognised medical condition and the impairment were randomly present by coincidence and made absolutely no difference to the behaviour that ensued.

David Howarth: I do not want to go into the technicalities of causation and the law because that would take me and the whole Committee back to my previous life. I just want to draw attention to the practical problem caused when psychiatrists are called to give evidence but they say that they do not deal with such categories, contributory factors or cause, and deal only with peoples minds. There is a lack of connection between the way in which lawyers think and how psychiatrists think.

Maria Eagle: There certainly will be other evidence of what went on in the individual circumstances of the case before the court, as well as the medical evidence. While we would not necessarily expect the medical expert to be an expert on causation, it would be for the jury in respect of all the evidence it has before it to decide whether it was merely coincidence or whether a cause contributed more or was of some significance and related the behaviour to the medical condition. We would expect the expert to at least be able to say whether the kind of behaviour that was exhibited was the sort that often related to the medical condition that was being discussed. I am sure that the 12 good men, women and true would be able to use their sense in respect of the medical and other evidence before them. Clause 40 extends the provision that we are discussing under clause 39 to Northern Ireland.
Amendments 17 to 20 tabled by the hon. and learned Member for Harborough would extend the partial defence of diminished responsibility in murder cases significantly beyond the scope of current legislation. It would mean, recalling the hon. and learned Gentlemans speech at our previous sitting, that the defence could be used not when the defendant was suffering an abnormality of mental functioning arising from a recognised mental condition, but when the deceased had been suffering in that wayin other words, the victim, the person who had been killed. The defence would need to show that the defendants ability, not that of the dead person, to understand the nature of his conduct, to form a rational judgment or to exercise self-controlor any combination of the threehad been substantially impaired by the deceaseds abnormality of mental functioning, and that the deceaseds abnormality provided an explanation for the killing.
The hon. and learned Gentlemans remarks set out what he was reaching for, and he accepted that there might be some confusion in the amendment. He was setting out that the abnormality of mind was that of the deceased, rather than that of the person doing the killing. Those present understood what he was getting at. However, his amendments would lead to some bizarre and undesirable effects if we were to accept them.
The partial defence of diminished responsibility has never been designed to provide for such circumstances, but has always operated to make allowance for defendants who at the time of the killing were mentally impaired. We agree that that is the best basis for the continuation of the partial defence and wish to retain that limited scope. The partial defence should be limited to those whose own ability to exercise self-control, make a rational judgment or understand the nature of their conduct has been substantially impaired by their own abnormality of mental functioning. For the defence to succeed, they would need to show that the abnormality of mental functioning provided an explanation of the killingwe have just been discussing thatso there would have to be an element of causation, although not a heavy one. We do not believe, therefore, that the amendments of the hon. and learned Gentleman work conceptually.
It is a bit unusual to suggest that one persons abnormality of mental functioning arising from a recognised medical condition would have the effect of substantially impairing a different persons ability to understand the nature of their conduct, to form a rational judgment or to exercise control. The amendments would not serve the interests of justice, although we all understood the narrow ambit of the cases that he was talking about. However, explicitly providing the opportunity for the defence to inquire into the state of mind or general health of the deceased would be a worry. We would not want such things to become commonplace in cases where the deceased had been suffering from an illness of one kind or another, or to create a specific defence for the killing of people who are mentally impaired. The signal that sends to society and the public would be difficult to defend, and we cannot support the amendments of the hon. and learned Gentleman.
There has been a bit of discussion about the concept of mercy killings and a person who kills out of some feeling to relieve the suffering of the deceased. The current law of diminished responsibility requires the defendant to have been suffering from an abnormality of mind arising from one of a number of specified sources. Our proposal introduces the concept of a recognised medical condition. Conditions currently amounting to an abnormality of mind fall within the definition of a recognised medical condition in the new test. Our change of wording for the partial defence is designed to make the law clearer, easier, more modern and better able to move into the future. The definition should be easily understood rather than left behind by medical developments, as the current one arguably has been. Amendments 17 to 20 seek to address a perceived problem that we do not believe exists. Even if the problem existed as the hon. and learned Gentleman set out, we do not believe that his amendments would work in a desirable way to deal with what he had to say.
Amendments 164 and 165 of the hon. Member for Cambridge would undermine our efforts to modernise the partial defence. The effect of amendment 164 would be to remove the requirement that the defendants abnormality of mental functioning arose from a recognised medical condition, and he explained why he put that forward.
However, we believe that the inclusion in clause 39 of the requirement for a recognised medical condition to have given rise to the abnormality of mental functioning follows the Law Commissions recommendations in its report Murder, Manslaughter and Infanticide. It is designed to bring the existing terminology of the partial defence up to date in a way that encourages defences to be grounded in valid medical diagnosis, linked to accepted classificatory systems, with the flexibility to allow for future developments in diagnostic practice.
We believe that recognised medical condition, despite the concerns that have been expressed in the Committee, is a substantial improvement on the current law. It is supported by organisations such as the Bar Council, the Law Society and the Royal College of Paediatrics and Child Health. We believe that it will bed down quickly and it will be easier for the courts and medical practitioners to use than is currently the case.
Amendment 165 would remove the requirement that the defendants abnormality of mental functioning must have been at least a significant contributory factor in causing him to act as he did. We have rehearsed some of the arguments about causation. We do not believe that the partial defence should succeed where random coincidence has brought together the activity of the person and the recognised medical condition. We want to be more explicit about the extent of the required connection than the Law Commission was. We recognise that the Law Commission was not engaged in legislative drafting, and that is why we say that there must have been at least a significant contributory factor in causing the defendant to act as he did. We do not require the defence to prove that it was the only cause or the main cause or the most important factor, but there must be something that is more than a merely trivial factor. There needs to be a link and we believe that the current wording gets that link right.
Amendment 165 removes all the detail and relies on the requirement that the abnormality of mental functioning must provide an explanation. Although the hon. Gentleman would no doubt argue that that does not remove a need for causation altogether, we do not consider that it is sufficiently precise. It is not clear how it would be interpreted by the courts and the defence.

David Howarth: The Minister has just expressed precisely why I want it to be like that, as the amendment intends. The attempt at precision is what is causing all the trouble. It is sometimes better to leave things to courts and to juries than to try to overdo the precision even more, which will get a reaction from the courts and from juries, which will be precisely what the Government did not want in the first place.

Maria Eagle: I do not think that we are an enormous distance apart. We are talking about how much causation is necessary between the recognised medical condition and the abnormality that gives rise to the act. Given that we are changing the statute, we need a certain amount of provision, but we hope that the wording that we are putting forward does not imply that there must be a hard causal link. It has to be the main cause or even the most important cause, but it must be more than trivial. I am not clear that the hon. Gentlemans wording of explanation is sufficiently precise, but we may have to agree to disagree. I do not think that we are an enormous distance apart.
Amendments 400 to 402 introduce the concept of developmental immaturity into the partial defence of diminished responsibility for people between the ages of 10 and 18. On the previous occasion that we met, the hon. and learned Member for Harborough was worried that it was excluding children from the partial defence. It does not do that. There are many people under the age of 18indeed under the age of 10who are diagnosed with recognised medical conditions that may substantially impair their ability to do all kinds of things, and it would certainly fit them into the kind of defence that we are setting out here. Autistic spectrum disorders, for example, spring to mind. They are sometimes diagnosed at a very early age, and parents usually know about it before doctors. However, that is not to say that they are not diagnosed at an early agethey are. Of course, the defence would still be open in respect of children who have had a recognised medical condition diagnosed.
The effect of the amendments would be to extend the partial defence to where the defendants ability to understand the nature of his conduct, form a rational judgment, or exercise self-control were substantially impaired by developmental immaturity. The Government came to the conclusion that it would not be appropriate to extend the partial defence of diminished responsibility to include the developmental immaturity limb when we were considering the recommendations of the Law Commission. We looked at this very carefully and the reasons are essentially twofold. First we are not persuaded that there is an underlying problem that needs to be addressed. Secondly, we think that there may be distinct disadvantages to introducing this limb to the defence.
During our consultation, the Government did not receive any evidence that the absence of a developmental immaturity provision in the existing law is causing any significant difficulties in practice, or resulting in injustice in specific cases. That being the case, we are not persuaded of the need to introduce this new concept in the context of modernising the partial defence.
We also believe that including the provision will create a serious risk of opening up the defence too widely and catching inappropriate cases. Opening the door to young people to plead developmental immaturity would complicate the trial unnecessarily in many cases where a defence of diminished responsibility should not be available, because the defendant is clearly in possession of all their normal faculties and is at a level that one might expect at their age. One could not blame advocates for trying any available defencethose of us on the Committee who have ever practised law have all looked at every possible angle. That is part of being an advocate. Therefore, no matter how unlikely it might be that it could succeed, including the provision may open the defence in a way that we do not want to, to a much wider range of cases, in order to deal with an issue with which we are not confident that there is a real practical problem.
However, we are confident that obviously deserving casesI have given the example of a child with an autistic spectrum disorderare covered by the defence as it is currently cast. On that basis, we do not believe that there is a serious issue of young people being denied the defence of being disadvantaged with respect to adults. The defence may be available to a person of any age, whether over or under 18. In essence, wherever a defendant, young person or adult, suffers from an abnormality of mental functioning arising from a recognised medical condition, it would be open to them to make the case that that substantially impaired their ability to understand the nature of their conduct, to form a rational judgment, and to exercise self controlor a combination of those three things. Even where a relevant abnormality of mental functioning is present, a defence will succeed only if the impairment of those abilities caused, or was a significant contributory factor in causing, the defendant to carry out the killing. We believe that that is the right balance and that the partial defence should apply only in those circumstances. I hope that that explains why we have come to the conclusion that we should not follow the Law Commissions recommendation in respect of developmental immaturity.
I have probably been speaking for quite long enough on this group of amendments. I should like to invite the hon. and learned Member for Harborough to withdraw his amendments, but no doubt he will have something to say to us about that.

Edward Garnier: I am grateful to the Minister for explaining the Governments response to the arguments put forward by the hon. Member for Cambridge and me. However, I am still of the view that if the Bill were a ship, it would capsize. It is constructed on a small hullits title, the Coroners and Justice Billbut the superstructure is too heavy and too big for the vessel. Over the past hour or so and at the end of our previous sitting, we have had reasonable debate about one of the most important aspects of the criminal law. However, this part of the Bill is spatchcocked into a measure that deals, literally, with between 15 and 20 other discrete and complicated areas of the law. I urge the Government not to do that because although we have been having a good conversation, it is not the way to develop the criminal law.
I also urge the Government not to rely on or be seduced by the adjective modern; although it sounds nice and effective, it hides a multitude of ill-considered ideas. The reason why the common lawif I may say soworks is that it has been thought about in a developmental way over many centuries, not cobbled together in an overcrowded Bill in a timetabled Committee sitting. We cannot do anything about that now, and we have done our best in the short time we have, but I repeat my plea to the Government not to do that spatchcocking again. I said the same thing during the Criminal Justice and Immigration Bill, the Offender Management Bill and a number of the other Bills related to criminal justice that the Government have presented since 1997. I say it not only because I think that the system would be better in itself, but because it would make my life more comfortable. As the Committee knows, and is bored of me saying, I am not only a Member of Parliament, but a Crown court recorder, a part-time criminal judge. One of the things that I have to do is to take judicial refresher courses, which I do on both a day-case basis and a three-day residential course basis at Warwick university.

Henry Bellingham: Take the Minister with you.

Edward Garnier: My hon. Friend anticipates me. I urge Ministers, if they ever have the time, to come to the Judicial Studies Board courses, because they will see how devastating the analysis of the legislation is. Nobody suggests that Ministers are ill-motivated, but people suggest that Ministers are in too much of a hurry to pass legislation, as if that answers the public policy problem that is revealed.
Listening to the hon. Member for Cambridge has reminded me somewhat of the lectures I have heard by David Thomas, John Spencer and Nicola Padfield, who are all colleagues of the hon. Gentleman in academic life at Cambridge university. Although we are in Committee to legislate, not to have an academic discussion, it is important that if we are developing the criminal law, we should do so with some measure of understanding about what we are doing. The law should be fair, particularly in relation to homicide, and the punishment should fit the crime. The law should also produce a rational division of function between the judge and the jury. Perhaps more important in relation to the discussion we are having, it should be easy for the citizen to understand and for the jury to apply.
Despite all the references to the words modern and modernisation

Maria Eagle: I only said it once.

Edward Garnier: Now the Minister is getting defensive. We are in danger of producing more and more law that is less and less easy to understand. The Minister may not suffer from it but I do, because when I go to the JSP courses, as the only parliamentary representative on such occasions, they blame me for passing those laws. I urge both Ministers to spare a few moments and come to one of the coursesthey would find it instructive.

James Gray: They would be lynched.

Edward Garnier: They might avoid that. Both the hon. Member for Cambridge and the Minister rehearsed the existing law. They took us through section 2 of the Homicide Act 1957 and the Law Commissions recommendations. From their different standpoints, they told us why the commissions recommendations should or should not be followed. My sympathies, I am afraid, lie more with the hon. Gentleman than with the Minister on this occasionalbeit that I fully accept the political difficulty that all Governments face in relation to the question of the mandatory life sentence for murder. Until we unravel that difficultytoday is not the day to do thatwe will go through the complicated hoops and over the hurdles that have been mentioned today.
I fully accept the Ministers points in relation to my arguments about the victims state of mind affecting that of the killer. I will not pursue those arguments further but they were worth putting on the record. They might be more suitable for writers and academics than for a Public Bill Committee, and perhaps such arguments can be further developed in another place. I do not want to press the amendments further, and I thank the Minister for responding carefully to them.
There is more work to be done on the issue of developmental immaturity. Although I accept the Governments response, and I understand why it differs from that of the Law Commission and from the views held by the hon. Member for Cambridge and me, the argument will not go away. The difference between what the Government propose and what we argue for relates to the question of developmental immaturity. The Law Commission was anxious to include that because criminal responsibility begins at the age of 10. At that age the frontal lobes of the brain, which govern self-control among other things, are not fully developed. Most experts who were consulted considered it essential to have regard to that factor when considering the extent of a young defendants responsibility for his conduct.
As the Minister said, the Government did not accept that line of argument for two reasons. First, they do not believe that the absence of such a provision is causing serious problems in practice and, secondly, they felt that it would open up the defence too widely and catch inappropriate cases. Even if it were to succeed only rarely, as the Law Commission suggests, the Government thought it likely that far more defendants would try to run that defence, thereby diverting attention from the key issue in too many trials.
As a matter of practice, judges are quite acute at preventing defences from going down cul-de-sacs or chasing irrelevant issues. Juries can spot a dodgy case when they see one, even if they might not approach the issue in the same academic or rational way as the hon. Member for Cambridge or a trial judge. There is a certain paradox in the Governments approach to the arguments that have been put forward by the Law Commission and those who agree with it.
At present, natural developmental immaturity in a child who has reached the age of 10 does not constitute a defence. That may be why developmental immaturity is not causing problems in practice. However, it is surely offensive to justice that a child whose brain has not yet developed to the extent necessary to provide the self-control found in an adult should be unable to pray that fact in aid, at least as a partial defence. Children develop at different speeds. IfI accept that this is a big ifsome are sufficiently mature at the age of 10 to have full criminal responsibility, those who are not should be entitled to pray that fact in aid.

Maria Eagle: Is not the hon. and learned Gentleman making an argument for raising the age of criminal responsibility, rather than including a developmental maturity limb in the partial defence? What is his partys position on that?

Edward Garnier: We are at a stage of developmental immaturity in relation to the issue of doli incapax. I will not pretend to come back with a smart Alec answer. None the less, this is a live issue that needs to be considered. I hope that I have answered the Ministers question in a way that does not dismiss it off hand.
We must ask ourselves about the key issue from which a plea of diminished responsibility by reasons of developmental immaturity would detract. Such a plea is likely to be advanced only when there is no issue about the fact that the defendant had committed the killing. If provocation was also being used as a defence, the age of the defendant, and its effect, would have to explored for that purpose.
There is perhaps a wider issue about whether under common law it would still be open to a child to advance a plea of doli incapax, or lack of criminal responsibility. That issue has been discussed in textbooks and I will not delay the Committee further by going through it. In all events, it will be apparent that my sympathies, and those of the Conservative partyand this might be true of individuals in other parties as welltend towards the Law Commissions view rather than that of the Government.
Having said that, as I indicated last Thursday, I am not going to press this matter to a vote; it is almost too important to be limited to a yes or no answer and requires a lot more thought. The Government are in a hurry, the Bill is too big and we in the House of Commons cannot properly discuss these issues in a way that produces a law that is clear, fair and understandable to the jury and the wider public.
I will leave the matter there for the moment and invite the Government to think about it between now and the time that the Bill arrives in the other place. In closing, I invite those in the other place to use the opportunities that they have, untrammelled by time constraints, to think about this and advise us more clearly. Should they come back with any amendments, I hope that we will be given the time to consider them. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 ordered to stand part of the Bill.

Clause 40 ordered to stand part of the Bill.

Clause 41

Partial defence to murder: loss of control

David Howarth: I beg to move amendment 168, in clause 41, page 25, leave out lines 5 to 7.

Frank Cook: With this it will be convenient to discuss the following: amendment 206, in clause 41, page 25, line 6, after self-control, insert caused by gross provocation.
Amendment 169, in clause 41, page 25, leave out lines 11 and 12.
Amendment 207, in clause 41, page 25, line 17, leave out considered.
Amendment 170, in clause 41, page 25, leave out lines 18 to 21.
Amendment 2, in clause 41, page 25, line 18, after adduced, insert
by the defendant, whether or not deliberately or, if adduced by another, relied upon by the defendant,.
Amendment 171, in clause 41, page 25, line 22, leave out (5) and insert (1).
Government amendment 266.
Clause stand part.
Amendment 3, in clause 42, page 25, line 35, at end insert
(provided that Ds fear of serious violence must have been aroused within a period that was in all the circumstances reasonably proximate to the killing of V).
Amendment 450, in clause 42, page 25, line 39, leave out paragraph (b).
Amendment 173, in clause 42, page 25, line 39, leave out a and insert an objectively.
Amendment 416, in clause 42, page 25, line 39, leave out seriously.
Amendment 4, in clause 42, page 25, line 39, at end insert , and
(c) was done or said within a period that was in all the circumstances reasonably proximate to the killing of V.
Amendment 5, in clause 42, page 25, line 41, at end insert
so long as they occurred within a period that was in all the circumstances reasonably proximate to the killing of V.
Amendment 6, in clause 42, page 25, line 42, leave out subsection (6).
Amendment 417, in clause 42, page 26, line 2, leave out or said.
Amendment 418, in clause 42, page 26, line 4, leave out seriously.
Amendment 419, in clause 42, page 26, line 4, leave out or said.
Amendment 174, in clause 42, page 26, line 5, leave out justified and insert justifiable.
Amendment 420, in clause 42, page 26, line 5, leave out or said.
Amendment 176, in clause 42, page 26, line 7, leave out paragraph (c) and insert
(6A) Violation of a code of honour or sexual infidelity are not to be regarded without more as circumstances of an extremely grave character for the purposes of subsection 4(a) above..
Amendment 7, in clause 42, page 26, line 7, leave out paragraph (c).
Amendment 175, in clause 42, page 26, line 7, leave out or said.
Amendment 111, in clause 42, page 26, line 8, after disregarded, insert
unless the fact that the thing done or said which constituted sexual infidelity is relevant to other things done or said (or both) which do not constitute sexual infidelity but which are put forward as qualifying under subsection (4) of this section..
Clause 42 stand part.
Clause 43 stand part.

David Howarth: We now come to the second part of the defence proposed by the Bill. This time the defence is that of loss of control, which is proposed to replace the existing defence of provocation. My remarks about the relationship between the law of murder and the partial defences apply equally in this regard, and I do not want to go through those arguments again. However, the general structure of the idea is that if one were to reform the law of murder in a more accurate way so that the mandatory life sentence applied to a specific type of case, at that point it would become entirely justifiable to start to narrow the defences that allow a charge of murder to be reduced to one of manslaughter.
[Stephen Hesford in the Chair]
In this particular case, there is an extra complication, which is that the defence of provocation is somewhat dubious in the first place. Most people would get the underlying moral idea of diminished responsibility immediatelythat someone was not entirely responsible for their own actions and, therefore, should not be treated in the same way as someone who was fully morally responsible for their actions. That seems to be a clear moral principle, although often difficult to apply in individual cases.
Provocation does not have the same clarity, at least for me, because its starting point seems to be a defence that blames the victim. The idea of provocation is, He made me do itsomething that the victim did provoked the defendant to carry out the homicide. I do not find the moral base for that as clear as for diminished responsibility. My instinct, always, is that diminished responsibility should be broader and that provocation should perhaps be narrower. The Government are in danger of broadening the whole idea of provocation, making it a much broader defence, for a reason of which I am not entirely sure.
One of the things that the clause does is to remove the idea that the action that somehow caused the defendant to carry out the killing was something to do with the victim. If one talks about loss of control in the context of a justifiable wrong, which is what the clause does, but forgets about who did that justifiable wrong, the provocation has been turned into the kind of defence in which being angry with the world is an excuse to kill someone. I cannot see, morally, how that is the case. As I said, I would prefer the defence of provocation to be as narrow as possible.
There are hard cases, such as that important set about battered wives, which the law struggled to bring within the categories of the provocation defence. It always seemed to me that the way to deal with the problem was to broaden diminished responsibility and not to try and jam those cases into provocation.

Maria Eagle: Was the hon. Gentleman not arguing for the narrowing of diminished responsibility in our previous debate?

David Howarth: If we stay within the context of unreformed murder, my position is to broaden diminished responsibility. But if we reform murder, we can talk about narrowing all the defences, because they are all about the relationship between murder one and murder twobetween murder and manslaughter. If we stay with what the Government want, which is to leave murder unreformed, the way to deal with the battered wives cases is to broaden diminished responsibility and not to jam such cases into the provocation defence.
What the Government propose in the clause is a loss of control defence. My starting point is that I cannot really understand why that should, in itself, be a defence. Murders, to me as a non-expert in criminal law, largely involve people losing control. Part of why violent offences are wrong is that people did not control themselves in a situation in which they plainly should have done. Rather than introduce the strange notion of loss of control, I much prefer to deal with the ideas in the clause as part of the reform of the law of murder itself. It is even more strange when the clause refers to loss of control not being sudden. I do not understand what that means.
Loss of control has to happen at some point. There might be a long build-up to the loss of control, but it seems inherently to be an event not a process. A process leads up to it happening. It then happens, but it still happened at a particular time. That part of the clause seems to be the result of confusion about the very idea of loss of control. If we are dealing with battered wives cases as part of the defence, we are still left with the problems under the previous law. [Interruption.]

Frank Cook: Order. The hon. Gentleman is speaking.

David Howarth: It would still be a requirement in battered wives cases to prove loss of control by the defendant. Throughout the debate, the Government have been avoiding that part of the clause to give the impression that another provision does not depend on the loss of control. The whole clause depends on loss of control and that cannot be avoided.
The clause has a further general problem. It is simply confusing. For example, in evidence to the Committee, there was an issue about whether the clause covers the situation in which excessive force was used in self-defence. Some people have written to say that one problem of the clause is that excessive force in self-defence will no longer be treated as providing a partial defence unless loss of control can be proved. That narrows the scope of defence for defendants when they have gone too far in defending themselves. Justice took that position.
However, in contrast, Liberty made the opposite argument about precisely the same part of the clause. It said that the clause clarifies the case when a person overreacts to what they perceive to be an imminent threat, and that the clause could impact differently on such cases. The Government might not like to hear it, but Liberty said that in cases in which juries are unwilling to convict people who kill burglarsa controversial matter that we discussed while debating another Billa conviction would be more likely, which I doubt that the Government would want to see. There are two different readings of precisely the same problem and what the clause says about it. If the clause is that confused, perhaps the Government should think again.
[Frank Cookin the Chair]
Amendment 168 would remove the loss of control element from the clause. It is bad in principle, makes no sense and will cause injustice. Amendment 169 would remove the suddenness provision. That makes no sense andI suspectno difference.
Amendments 170 and 171 are more technical. They arise from the evidence that was given to us, about the problem with the current drafting of the clause. Complications could occur in a case in which the defendant has both a self-defence and a provocation argument. It seems that under the clause as drafted, the defendant would get into trouble and be unable to run both those defences because there would be a presumption that the provocation defence was in play, which would undermine the self-defence argument. Therefore, it was suggested to us that we should redraft the clause to ensure that that would not happen. Although the proposed solution might not be perfect, there is a problem in the clause, which we have been invited by those who gave evidence to us to correct.
Amendment 173 would insert the word objectively into the leg of the defence that talks about the feeling that there had been a justifiable wrong. The amendment allows the Government to clarify what they think the situation is in that part of the defence. The question is: who would decide whether a feeling of being wronged was justifiable? Would it be a subjective feelingsimply what is felt by the defendantor would it be judged objectively by the court, either by the judge or ultimately by the jury? That is especially important in cases of honour killings. My concern throughout the debate on the clause has been that there is a possibilityundoubtedly by inadvertencethat honour killings would be treated more leniently under the clause than they would have been under previous laws. As I think is agreed on all sides, that is the opposite to what anyone in the Committee intends. Inserting the word objectively in the clause would clarify that question. I am usually no great fan of inserting the word objective, because it has many different meanings, so if the Government come up with a better solution, I will be more than happy. None the less it is an issue: when offences are drafted, it needs to be made clear who decides what, what the defendant personally thinks, and what the jury and the judge do.
Amendment 174 would clear up an anomalyagain, it is a small technical point. In clause 42(4), the word justifiable is used, yet when we reach subsection (6)(b), the word justified is used instead. The two words are not the same thing; something capable of being justified is different from the act of being justified. I would like the Government to make up their mind which of the two they want.
Amendments 175 and 176 relate to the controversial issue of sexual infidelity in the law of provocation and loss of control. There has been some disquiet in the legal community about why one particular form of provocation or loss of control had been picked out, when there are other forms that one might equally insert in the primary legislation to state that they should not form the base of a defence. There are two ways of dealing with the problem. The first is to remove any specific circumstances from the face of the Bill, and the other is to think about other cases where we might want to say to the courts, Do not regard this particular set of circumstances as one in which that defence could be run. In line with my general feeling that the defence should be narrower, we have chosen the latter route, rather than the former, although the hon. and learned Member for Harborough appears to have chosen the former. Nevertheless, there is a problem and we have suggested that honour killings be included on the list of types of case where that defence should not be allowed.
We have also taken into account representations to the Committee that circumstances being disregardedthe wording of the existing clauseleads to some difficulty. It might mean that where the context for some other form of provocation needed to be explained, it might become impossible to explain that to the court. We have suggested a drafting change, which would link that particular problem to what counts under the clause as circumstances of an extremely grave character. Saying that certain circumstances cannot count as those of an extremely grave character would be a more effective way of doing what we want to do.
Finally, there is the puzzle about things said constituting sexual infidelity. I am far from clear what the intention of the proposals is. I suppose that if one read the New Testament in a particular wayespecially in the same way as President Jimmy Carter notoriously didthings thought can count as sexual infidelity, as well as things said. However, I cannot see how that works for those of us who operate in a common-sense world, where sexual infidelity is something that someone does, rather than something they say or think. The case that has been put to us is an important one. It is that often in such cases the defendant claims that hisit is usually that way aroundpartner taunted him and that somehow she committed sexually infidelity with words. However, that is not so. The words do not constitute the sexual infidelity, the wordsthe tauntingare an act. We need to work out how to draft the clause in a way that captures what we want to capture and does not make no sense at all.
The underlying problem is that one has to be very careful with that defence. Historically, it has been a blame-the-victim defence and I do not want to see it become too broad.

Edward Garnier: From what the hon. Gentleman said in opening his remarks on the amendment, it is apparent that he and the Liberal Democrats and we on the Conservative Benches are broadly travelling down the same road. I want to ensure that what we achieve at the end of the debate is a better law of provocation, or one that is easier for the criminal courts to apply.
It is probably not necessary for me to go through my amendments in detail, beginning with amendment 206. In essence, what we are aboutin line with the recommendation of Mr. Lodder, the representative of the Criminal Bar Associationis changing the description of the partial defence from that of loss of control to that of gross provocation. We are also concerned about the proximity of the aggravating, or provoking, event to the killing, and about the use of the expression considered...revenge in clause 41(4):
Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
I do not want a prolonged and footling discussion about revenge being considered or unconsidered. If somebody does something from a sense of revenge, it does not matter how considered it was. That must surely take it outside the ambit of the partial defence. Like the hon. Member for Cambridge, we are concerned about some of the qualifying triggers, and there needs to be much greater thought behind clause 42(6)(c) in relation to the application of sexual infidelity to the partial defence.
If I may, Mr. Cook, I will begin by going back to first principles to try to work out what provocation is under the current law, and then move forward from there. Mr. Justice Devlin, as he then was, provided this definition in the case of Duffy in 1949, which has stood the test of time:
Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.
That partial defencejudge-made lawwas intended to mitigate the rigour of an offence that in those days attracted the death penalty. Not long before, in 1946, the House of Lords had considered the case of Holmes in which a defendant had hit his wife over the head with a hammer and then strangled her. He claimed that he had been provoked because she had confessed to sleeping with another man. This was not the most attractive of pleas, given that he had gone off to his own mistress and told her that his wife had gone away, which was, I suppose, in some senses true. The House of Lords held that, as a matter of law,
a confession of adultery, without more, is never sufficient to reduce an offence which would otherwise have been murder to manslaughter
and that only in circumstances of a most extreme and exceptional character would words alone amount in law to provocation.
Had the law stopped at that point, there would have been little need for some of the reforms that the Government are proposing. However, the Homicide Act 1957 changed the law and provided in section 3 as follows:
Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.
That made three changes to the existing common law. First, it established that words alone could amount to provocation. Secondly, it meant that the court could not rule that as a matter of law something was not capable of amounting to provocation. That question had to be left to the jury, however absurd the claim of provocation might appearthe Law Commission gave the example of the wife who burnt her husbands steak. Thirdly, it meant that the judge could no longer dictate to a jury what were and were not the characteristics of a reasonable man.
The courts, not least the House of Lords, then got into a bit of a bind deciding how the jury should decide what effect the provocation should have on a reasonable man. Should the reasonable man be assumed to have the age of the defendant? That would be significant if the defendant was very young. What if the defendant were a homosexual, a glue-sniffer or a man with a very short temper? Should the jury consider the effect of the provocation on a man with those characteristics? Ultimately the Law Lords wrapped up the issue in the case of Holley, a Privy Council appeal from Jersey. They decided by a majority that it was right to have regard to the special characteristics of the accused when considering the sting of the provocation, but not when deciding the effect that such sting would have on a reasonable man.
The Law Commission found all that rather unsatisfactory. It also found it unsatisfactory that the courts had declined to extend the partial defence of provocation to reaction against fear of attack. Reasonable force can be used in self-defence, and provides a complete defence to a charge of murder. If, however, the force is more than a reasonable reaction to the threat, it will not even provide a partial defence to such a charge. Furthermore, the battered wife who from fear of further attacks kills her husband as he sleeps cannot properly invoke the partial defence of provocation.
As the Minister will no doubt explain in a moment, the Law Commission recommended that the defence of provocation be reformed in a number of ways. Unlawful homicide that would otherwise be first degree murder should instead be second degree murder if, first, the defendant acted in response to gross provocation, which means words, conduct or a combination of both that caused the defendant to have a justifiable sense of being seriously wronged, or fear of serious violence towards the defendant or another, or the combination of those two. The second main reason for the change would be if a person of the defendants age and of ordinary temperamentordinary tolerance and self-restraint in the circumstances of the defendantmight have reacted in the same or a similar way.
In deciding whether a person of the defendants age and of ordinary temperamentthat is, ordinary tolerance and self-restraint in the circumstances of the defendantmight have reacted in the same or a similar way, the court should take into account the defendants age and all the circumstances of the defendant other than matters whose only relevance to the defendants conduct is that they bear simply on his or her general capacity for self-control. A judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply.
The proposed reform significantly restricts the scope of the defence of provocation and gives the judge control over whether it could be raised. It would, however, leave it open to the jury to find provocation established when a spouse was unfaithful and by words, conduct or both caused the other spouse to have a justifiable sense of being seriously wronged. The Governments proposals go some way to adopting the Law Commissions recommendations, but the reasoning advanced for that differs somewhat from that advanced by the commission. Ministers contend that the law of provocation has operated in the domestic context in a way that has discriminated unfairly in favour of men and against women. Men have been permitted to rely on their anger about their wives infidelity as a partial justification for killing them, whereas women who have been physically abused by their husbands and have killed them from fear of further abuse have been denied the defence of provocation.
The Government propose that provocation should reduce the offence of murder to manslaughter when the defendants conduct has resulted from a loss of self-control triggered by a fear of serious violence from the victim. That mirrors the commissions proposal. Ministers would, however, further restrict the ambit of provocation caused by words or deeds to a greater extent than the commissions formula for gross provocation. Under the Bill, the Governments formula requires a loss of self-control attributable to things done, said or both, which amounted to an exceptional happening and caused the defendant to have a justifiable sense of being seriously wronged. The provisions go on to provide that an act of sexual infidelity is not of itself an exceptional happening.

Maria Eagle: I know that exceptional happening was referred to by the Law Commission, but the phrase is not in the Bill.

Edward Garnier: It is not. The Minister is right, but the concept behind the set of words is. I am not proposing to have a semantic argument about subsection (6)(c) of clause 42, which states that
the fact that a thing done or said constituted sexual infidelity is to be disregarded.
The general issue of whether sexual infidelity is to form part of the discussion is in both the commissions report and the Bill. No doubt when the Bill was in gestation, exceptional happening and disregard were discussed in the Ministers office. The Bill is now as it is, but the themes that need to be clear in our heads today are properly described by the words that I have used.
As the Minister will remember, when the Bill was being thought about, she issued a press release from her Department, which stated:
For men and women who kill their partners these changes will mean that the letter of the law finally catches up with judges and juries who, in recent years, have been less prone than people think to let men off lightly and punish women harshly. However, in order to be fair theyve had to stretch the law to its limits. With these changes, the law will be clearer.
I am sure that subsection (6)(c) of clause 42 clarifies the law, but whether in a sensible direction is the point at issue in our amendment. As far as letting men off lightly is concerned, it causes a degree of difficulty. The current law requires provocation to be conduct that would cause a reasonable man to act as the defendant acted. If juries are declining to hold that infidelity meets that test, I cannot understand why it should be suggested that they are stretching the law to its limits.

Maria Eagle: I am trying to follow what the hon. and learned Gentleman is saying, but would he throw that one at me again?

Edward Garnier: Would the Minister like to catch it with one hand or two? If the Minister is finding it difficult to follow what I am saying, I shall return to the Bill and take her to the text. I had hoped to avoid a line-by-line analysis of the Bill, because we are in Committee not so much to discuss the detail of the amendmentsoften a device to provoke discussionbecause the hon. Member for Cambridge has taken us through some of them, which if not in identical words to mine are broadly similar in effect.

Maria Eagle: I am not inviting the hon. and learned Gentleman to go through the whole Bill if he does not feel inclined to do so; I just wanted him to clarify his point that I did not quite catch.

Edward Garnier: Which point did the Minister not quite understand?

Maria Eagle: I fear that I have probably forgotten it by now. I could not follow the argument that the hon. and learned Gentleman was making from whatever he was reading.

Edward Garnier: I am sorry that the Minister did not follow my argument. No doubt she will be able to defend the Governments proposals in clause 41 as a matter of general argument and in response to how we have draftedI almost said pleadedour amendments.
It seems to us that loss of control is a less useful way of describing a partial defence than gross provocation. It seems to us that the matters referred to in the clause dealing with revenge are in need of tightening and clarification. It seems to us that the slow burn provocation may have value in justice, but needs to be better explained during the course of debate on clauses 41 and 42. Our amendments on proximation need to be answered, even if they are not wholly accepted. Loss of control or gross provocation caused by sexual infidelity are matters that also need to be thoroughly explained.
I have an eye on the clock and the approximately 150 to 200 more pages of the Bill we have to discuss. We, as a collective, must at some stage deal with them. The hon. Member for Cambridge and I, through our amendments and remarks, haveI trustprovoked a discussion, to which the Government and their supporters need to respond. I look forward to hearing the Governments response to our suggestions.

Maria Eagle: I shall do my best to respond to the points made by the hon. Member for Cambridge and the hon. and learned Member for Harborough and to deal with the issues raised by the amendments. I shall try to set out what we seek to achieve by settling upon the wording in the Bill rather than some of the wording originally suggested by the Law Commission, following the consultation on our other consideration.
Loss of control is a new partial defence, and I shall explain why we have settled on the current proposals. The Government are persuaded that in a small number of murder cases the existing partial defence of provocation is too generous to those who kill in anger and is poorly tailored to killings in response to fear. I am not clear whether the hon. and learned Member for Harborough accepts that point, but the Law Commission did, as did the hon. Member for Cambridge in his remarks.
The Government also accept that point, and we seek to address the concern by abolishing the partial defence of provocation and replacing it with a new partial defence where a defendant kills as a result of loss of self-control attributable to one of the triggers that I will describe. I emphasise that the new loss of self-control partial defence is intended to have a higher bar than the current provocation defence. We are making the defence available to what willwe hopebe a smaller number of cases. That is the intention and I hope it answers the point raised by the hon. Member for Cambridge. The triggers are fear of serious violence, words or conduct that cause the defendant to have a justifiable sense of being seriously wronged and constitute circumstances of an extremely grave character, or a combination of those.
We are dealing with the clause stand part debates in this grouping. Clause 41 sets out the criteria that need to be met for the new partial defence to succeed. Clause 42 deals with the three qualifying triggers in more detail and clause 43 seeks to abolish the current law of provocation.
The defence is constituted in the following way. First, what the defendant has done must have resulted from a loss of self-control. However, that loss of self-control need not have been sudden, as it would need to be under the current defence. I will return to some of those points in the context of the amendments. Secondly, one of the triggers must have been present to account for the loss of self-control and, thirdly, the jury must be satisfied that a person of the defendants sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted as the defendant did.
We are addressing the question of when the judge must put the case to the jurythe hon. and learned Member for Harborough alluded to that point. It is when evidence has been adduced during the trial on which a jury could reasonably find that the defence might apply.
Finally, we are making explicit certain types of situation where the defence will not be available. That includes when a person acts from a considered desire for revenge or when the defendant incites someone to do or say things for the purpose of providing them with an excuse to use violence. Additionally, the fact that something done or said constituted sexual infidelity is to be disregarded when deciding whether there is a qualifying trigger. In a nutshell, that is the shape of the partial defence.
Let me deal with some of the details. Government amendment 266 aims to clarify when the trial judge must put the loss of self-control partial defence to murder to the jury. It is intended to put beyond doubt that the trial judge must ask himself, or herself, whether a properly directed jury could reasonably conclude that that defence might apply. In other words, where the judge takes the view that a jury could not reasonably conclude that the defence of loss of self-control might apply, he or she should not put the matter to the jury. It was always the Governments intention, in light of general case law regarding how judges should direct juries, for clause 41(5) to be interpreted as having that effect. However, we have reflected carefully on the wording and feel that it is important to put the matter beyond doubt. That is the purpose of Government amendment 266 and I hope that the Committee will accept it.
Amendments 168, 169 and 3 to 5 deal with the requirement for loss of self-control and are very much at the heart of the proposals for the new partial defence. Amendments 168 and 169 seek to remove the requirement for loss of self-control from the partial defence. The Government believe that the requirement for loss of self-control is an important safeguard in ensuring that the defence cannot succeed where the defendant kills in cold blood. All members of the Committee will want to ensure that. It would be wrong to allow a defence for murder for someone who kills when they are in full control of themselves, unless they are pleading self-defencea full defenceto a charge.
The Government also believe that it is right to change a law so that there is no longer a requirement that a loss of self-control needs to be sudden for the partial defence to succeed. That goes to the heart of what the Law Commission said about the imbalance in the provocation defence as it currently works. In other words, it is too generous to those who kill in anger, yet is not generous enough to those who have killed in fear.
The approach that we are taking more explicitly makes allowance for situations where the defendants reaction has been delayed or builds gradually than under current law. The examples that are typically used, which have been mentioned by both hon. Gentlemen, are slow-burn domestic abuse cases. One could conceive of other cases, but those are the ones that typically come before the courts.
In this context, it is important to note that although it is a requirement under the current law relating to provocation that a loss of self-control must be sudden, case law has developed over time to the effect that the partial defence might still apply where there is a delay between the provocative incident and the killing. That has largely developed in response to the slow-burn domestic abuse cases. However, achieving that has necessitated a rather strange interpretation of the suddenness requirement, to say the least.
In the press release that the hon. and learned Gentleman was kind enough to read to the Committee on my behalf I was making the point about

Edward Garnier: I am here to help.

Maria Eagle: I am grateful to the hon. and learned Gentleman for his help.
I was talking about trying to bring the statute into line with the developing practice in the courts, because Committee members who are lawyers will know that something tends to give once a statute is stretched beyond the ordinary meaning of the words and particular cases get up as far as the House of Lords. In many instances, it is best if we can change a statute in advance of that happening to avoid emergency legislation, for example, having to be dashed through the House, which is not unknown in the not-too-distant past. So that is the purpose of the provision.
We recognise that if we just used the words loss of self-control, it would be read too much within the current requirements in respect of suddenness, which have been there for a long time and are derived from case law rather than statute law. So we want to be clear.
Amendments 3 and 5, tabled by the hon. and learned Gentleman, would leave in the Bill the requirement in respect of loss of self-control and the stipulation that it need not be sudden, but would restrict the time between the trigger and the loss of self-control to the killing, which he referred to as proximation. The Government are sympathetic to the concerns that the hon. and learned Gentleman has raised. We all want to rule out killings in cold blood from coming within the ambit of the partial defence. That is undoubtedly one of the reasons for his drafting his amendments as he has done. However, the relevant clauses already offer sufficient protection to rule out unmeritorious cases. The amendments are unnecessary and have a number of potentially undesirable effects.
The introduction of the hon. and learned Gentlemans concept of reasonably proximate would add a layer of complexity to the test for establishing whether the partial defence applies. That is not necessarily a killer fact, but it is a disadvantage. It would, in effect, replace the requirement for a sudden loss of self-control with a requirement for a reasonably proximate loss of self-control. But what would count as reasonably proximate? Situations where there is a time delay often arise where the defendant has been subject to long-term abusewe go back to the domestic violence casesat the hands of their partner whom they eventually kill. Quantifying how long that delay might be would be hazardous in a statute.
The matter needs to be considered in the light of the evidence on a case-by-case basis and the current wording enables that to happen, whereas the concept of reasonable proximity is too difficult to be flexible enough to deal with all the potential circumstances and individual cases. It is also not a familiar concept in the criminal law. Hence its precise meaning and likely effect is less than clear. It would probably take some time for case law to be established around it and illuminate the meaning of that term in this context. The hon. and learned Gentlemans formulation would not be as useful as that in the Bill.

Jeremy Wright: I understand the Ministers argument, but could it not be said that the concept of proximity is what defines the line between the defence being available and acting with a considered desire for revenge? Is proximity not likely to separate someone acting in accordance with the defence set out in the Bill and acting with a considered desire for revenge?

Maria Eagle: I understand the point that the hon. Gentleman makes. The domestic violence abuse cases that gave rise to the Law Commissions concern that the defence as formulated does not deal with fear and that it may be too generous to reactions made in anger are not at all clear. Indeed, there would be enormous variations, from person to person and circumstance to circumstance, in those who have been beaten up over a long time. Where is the reasonable proximity in such cases?
If it were clearer, I might have more sympathy for the Oppositions formulation. However, there is a great diversity in reactions of fear. The evidence in many cases is that the oppression has been going on for years and that the oppressed partnerit is usually a woman, but it does not have to behas gradually fallen into the battered wife syndrome state that finally leads to the killing. The formulation of reasonable proximity proposed by the Conservative party does not help to make it clearer where the line ought to be drawn.
As I said, I understand the point that is being made, which is that one cannot leave it completely open-ended, or we may be incorporating some sense of a desire for revenge that none of us wants to be imported into the partial defence.

Edward Garnier: I follow what the Minister says, but could she point me to the provision in clause 41 that nails to the ground my point on proximity to and renders it wholly unnecessary?

Maria Eagle: I am not saying that it is wholly unnecessary. I have some sympathy with what the hon. and learned Gentleman is trying to achieve. I doubt whether any of us would want the partial defence to allow killing in cold blood. We are all trying to rule that outthe hon. and learned Gentleman with his formulation of reasonable proximity and we with the provisions in the Bill. We all want to rule out unmeritorious cases, and we believe that our formulation does so.
None the less, I understand the point being made. We are using different wording in trying to draw the line in an appropriate place. If one removes suddenness, one has to have some other barrier to stop opening up the defence to all kinds of unmeritorious circumstances. We believe that the requirement for loss of self-control combined with the exclusion of a considered desire for revenge will be sufficient to draw the line in the right place, yet still allow sufficient flexibility for individual circumstances in particular cases, such as in the domestic violence cases that gave rise to that concern; but we want to allow sufficient flexibility for those matters to fall within the partial defence when appropriate. We want to prevent undeserving cases, in which there is a lapse of time between the trigger and the killing, from succeeding with that defence.
Time delays remain an important factor under the Bill. It will be open to the judge to decide whether to allow the jury to find for that defence, and for the jury to determine whether the elements of the defence are satisfied in taking account of any time delay between the trigger and the killing. If there is a significant time delay between a relevant instant and the killing, it might, depending on the facts of the case, completely undermine the claim that the defendant had killed following a loss of self-control. If those elements are made out, the partial defence is not made out. I think that we are coming from the same place with slightly different formulations. We all want to rule out unmeritorious cases. I hope that I have managed to reassure the hon. and learned Member for Harborough that the clause as drafted addresses those concerns. In addition, I hope that I have managed to raise some concerns in his mind about his formulation, but we will see if that is the case at a later stage.
Amendment 206 deals with gross provocation. If it were accepted, it would significantly affect the operation of the partial defence of loss of control in ways that we oppose. Gross provocation was the phrase originally used by the Law Commission in its proposals for reform, and I am sure that that has something to do with why the hon. and learned Gentleman has sought to reintroduce it using the amendment.

Edward Garnier: As I think I made clear, it came from the evidence session, when the representative of the Criminal Bar Association came before us. Perhaps it is useful occasionally to listen to the evidence and try to adjust the Bill to reflect it. The hon. Member for Cambridge made a more important point about loss of control, which the Minister may well be coming to. That seems to be the lynchpin or lodestone of this discussion about provocation or loss of control.

Maria Eagle: Of course, I accept that the witness said that in his introductory remarks, and I accept that that is where the hon. and learned Gentleman got the phraseology fromalthough it is fair to say that the Law Commission itself also originally used that formulation.
Amendment 206 would have the effect of adding a requirement that the defendants acts and omissions of doing or being a part of the killing resulted in a loss of self-control caused by gross provocation. In addition to the requirement that the loss of self-control had a qualifying trigger, gross provocation was originally the label used by the Law Commission and was obviously taken up by others who gave us evidence. In clause 42(4), we have reflected the partial defence relating to words and conduct.
The concerns we have about accepting amendment 206 relate to the effect of adding a new element to the test for both limbs of the partial defence. First, it is wholly unnecessary to have an additional test because the ground covered by the Law Commissions gross provocation recommendation is already reflected in clause 42(4). An additional gross provocation requirement would complicate and confuse the test for the partial defence. Gross provocation relates to circumstances of an extremely grave character that caused D to have a justifiable sense of being seriously wrongedit is a different formulation of the same thing.
We do not believe that it is appropriate to apply a gross provocation requirement to the fear of serious violence in relation to partial defence because the whole purpose of creating that limb is specifically better to tailor the law in relation to cases in which people kill in fear. That is the whole purpose of the Law Commissions original recommendations, about which we agree. Adding a gross provocation requirement would resurrect the situation that exists in law where killings committed in fear need to be shoehorned into a partial defence designed for killings committed in anger. Including gross provocation as a requirement will also make it significantly harder for a plea based on fear of serious violence to succeed. It would be inconsistent with the focus of the fear of serious violence limb, which is based on what the defendant feared in the future, rather than just what occurred in the past.
I expect that those from various places who suggested that the phraseology gross provocation should be included have a view in mind of returning to the better known language of provocation that we all learned at law school. However, the Government have undertaken to abolish a partial defence of provocation and replace it with a partial defence of loss of self-control for killing in response to the fear of serious violence and, only for use in exceptional circumstances, killing in response to words and conduct, which cause the defendant to have a justifiable sense of being seriously wronged.
Our public policy aim is therefore to change the way in which the partial defence works, but we will not do that by re-importing language that had a different meaning in the past. We therefore want to change the wording, and that is part of the reason why we do not want to accept amendment 206.
We want to raise the threshold so that killings in anger can justify a manslaughter convictionthat is, the partial defence succeedsonly in truly exceptional circumstances. Conversely, as the law is essentially designed to cater for anger killings, it is not sufficiently tailored to killings in response to fear. The present changes represent a significant shift in policy, which we do not want to undermine by reverting to language that would probably be interpreted differently. We think that the language that we have will work.
On amendment 207, concern has been expressed about the considered desire for revenge. The amendment would remove the word considered from the reference to considered desire for revenge. The effect would be to narrow the circumstances in which the partial defence of loss of control might succeed, so any situation in which the jury finds that there was a desire for revenge would be ruled out.
The Government are determined that cases in which revenge is the primary motivation for the killing should not benefit from the partial defence of loss of control. From what the hon. Member for Cambridge said, I think that he would accept that, and I am sure that the official Opposition would not want such killings to come within the ambit of the defence. That is one reason why they tabled amendment 207.

Edward Garnier: I do not want to create dissent where there is no need for it, but I would like to have explained to me the point of using the word considered before the words desire for revenge. If someone kills someone else from a desire for revenge, they must presumably have gone through a thought process to bring them to that state of mind. The word considered simply allows people to think that there may be gradations of desire, which may not be what the Government intend.

Maria Eagle: I understand the hon. and learned Gentlemans point. Let me go back to the example that is usually quotedthat of slow-burn domestic abuse cases. There may be casesfor example, a long-term abusive relationship in which the abused partner finally killsin which thoughts of revenge have crossed the defendants mind, but what prompted the killing was the fear of violence by the abusive partner, which resulted in a loss of control. Such cases should not be barred from raising the defence. By referring to a considered desire for revenge, we are trying to strike the right balancebarring thought-out revenge killings, without automatically excluding cases in which some thought of revenge may have passed through the mind of the abused partner in an abusive relationship, when a complex range of emotions is in play. Obviously, it will be down to the jury to determine whether the partial defence is made out and whether it should succeed on the facts of the case. However, that is what we are trying to get at, and I hope that that assists the hon. and learned Gentleman.

Edward Garnier: Surely, what the Minister is after is a description of the dominant motiveit is the dominant motive that amounts to revenge in her example. It is not a question of the desire for revenge being considered. It is the predominant motive that dominated the defendants state of mind at the time that they killed.

Maria Eagle: I understand the hon. and learned Gentlemans point. The formulation in the Bill aims to ensure that any person who sets out to kill, where the main aim is revenge, is not able to gain the benefit of the partial defence. I am not sure that the hon. and learned Gentleman and I are a long way apart when he talks about a dominant motive, but amendment 207 would remove the word considered without including the words dominant motive. I will go away and think about whether we have got this right, but I do not think that we are 100 miles apart in trying to pitch the clause in the right place, and I shall consider his comments about dominant motives.
Amendments 170 and 171 deal with the burden of proof. When Professor Jeremy Horder, in his oral evidence to the Committee, suggested something along these lines, he appeared to be concerned about the assumption in clause 41(5) that the defence is satisfied unless proved otherwise by the prosecution. Professor Horder gave the example of a defendant seeking a full acquittal on the grounds of self-defence. He suggested that in such a case, the prosecution might be tempted not to rebut the defence, so that the defendant would be convicted of manslaughter, rather than found guilty of murder.
In considering that example, let us be clear about the purpose of subsection (5). All it does is clarify where the burden of proof lies when a partial defence of loss of control arises in a case. The subsection makes it clear that where sufficient evidence of the partial defence is adduced within the meaning of subsection (6), the burden rests on the prosecution to disprove the defence to the usual criminal standard of proof. The position reflected in the clause is commonly the position within criminal law. The same provision with respect to the burden of proof applies now to the partial defence of provocation, and the position is the same for self-defence.
Where there is sufficient evidence about those defences to raise an issue in relation to them, the burden falls on the prosecution to disprove the defence or else it will succeed. Clause 41(5), therefore, simply makes it clear that the usual principles apply in relation to the burden of proof in the new partial defence. Bearing in mind that we are abolishing the existing partial defence and replacing it with a new one, we consider that it is helpful, in the interests of clarityeverybody has been clear that they want us to pursue thatand certainty, to make it plain in the clause where the burden of proof lies.
Amendment 2 would change clause 41 so that the loss of control defence could be put to the jury only when the defence has raised it or, after someone else has raised it, where the defence wishes to rely on it. That links to our discussion on subsection (5) and would also be contrary to the usual position relating to defences within the criminal law where an evidential burden applies. As the hon. and learned Gentleman will be aware, the usual position is that judges should leave to the jury any such defence that the jury may reasonably find to apply on the evidence heard at the trial, regardless of who has adduced the evidence.
We do not think that there are sufficient grounds for departing from this position. The real problem with the current law that needs addressingI think that the hon. and learned Gentleman referred to this when he moved his amendmentis that section 3 of the Homicide Act 1957 requires the judge to leave provocation to the jury where there is evidence that a person was provoked to lose their self-control, even where it would be perverse to say that a reasonable person would have reacted as the defendant did. Under clause 41(6), that situation is rectified and the judge will leave the partial defence to the jury only where they are satisfied that a properly directed jury could reasonably conclude that it might apply.

Edward Garnier: Clause 41(2), to which the Minister referred, states that
it does not matter whether or not the loss of control was sudden.
Is that not the obverse of my argument about proximity? There is confusion in the Bill: if the loss of control does not have to be sudden, presumably it does not have to be proximate.

Maria Eagle: No, the Bill does not state that it has to be proximate. The essential point, which I have obviously failed to convey to the Committee, is that the new partial defence will rule out unmeritorious cases without casting the matter in terms of suddenness. I have said that I shall consider the hon. and learned Gentlemans comments.

Tim Boswell: I have yet to make a contribution, because I have no legal competence in such matters. However, having listened to this discussion, it seems to me that, if the suddenness test fails, or is removed, and if the proximity test is also unavailable, or not explicit, it is difficult to see what test will be applied. Will she lead me through that one?

Maria Eagle: I return to what I said at the beginning of my remarks, which is that we are recasting the partial defence so that we have a new one in which the defendant kills as a result of a loss of self-control attributable to a fear of serious violence, words or conduct that caused the defendant to have a justifiable sense of being seriously wronged and constituted circumstances of an extremely grave character; or a combination of those things. In that way, we put an appropriate boundary around the partial defence without having to refer to proximity or suddenness.
A sudden loss of self control is the way in which the old provocation and partial defence works. We are trying to get away from that and ensure that in the new partial defence, the fear of serious violence, which we and the Law Commission accept, is fairly dealt with. We want to make the partial defence resort less appropriate for anger. Therefore, we want to raise the bar in respect of anger killings.
In respect of killings on the basis of fear, we want to allow the defence to work in a way in which the wording of the old defence has not worked, although practice in the courts has been changing with common law developments.
Given the way in which the whole new partial defence is constructed, we do not believe that we need specifically to refer to proximity and time. However, I understand the concerns raised by both the hon. and learned Gentleman and the hon. Member for Cambridge that we could be allowing horrible revenge killings. I will consider whether we have got this right in view of our debate. None the less, I hope that I have made myself clear.
I am sympathetic to the policy aim of amendment 173. To determine whether things done or said caused the accused to have a justifiable sense of being seriously wronged, there should be an objective test, which answers the point raised by the hon. Member for Cambridge. That is why the clause states that the defendant should have
a justifiable sense of being seriously wronged.
The word justifiable makes the test objective. It would be subjective if it said, He has a sense of being seriously wronged. The word justifiable makes the test objective. We will hear at a later stage whether hon. Members accept that.
It is perfectly possible, however, that the jury accepts that the defendant had a sense of being seriously wronged, but when it applies the objective test, it may decide that that sense of being seriously wronged was not justifiable. That would cause the defence to fail at that hurdle.
Let us move swiftly on to amendments 416, 418 and 450

Jeremy Wright: Will the Minister comment on amendment 174 in light of what she has just said? There is a difference between justifiable and justified. In clause 42(6)(b), the word is justified. Given what the Minister has just said, should it not also say justifiable?

Maria Eagle: The hon. Gentleman is very sharp and is spoiling the denouement to my speech. I will accept amendment 174. I happen to agree with what the hon. Members for Rugby and Kenilworth and for Cambridge have said, which is the end of my speech gone for a Burton. [Interruption.] I am keeping control because I remember what is at the end of my speech before I have got there.

Edward Garnier: Has the Minister read the conclusion before the evidence?

Maria Eagle: That is more usually the habit of the hon. and learned Gentleman. None the less, the Government cannot support amendments 416 and 418, which would make it possible for defendants to raise the partial defence of provocation in circumstances in which things said or done could give the defendant a justifiable sense of being wronged as opposed to a justifiable sense of being seriously wronged. Amendment 450 touches on the same point. The amendments would lower the threshold for the limb of the defence, which undermines the Governments stated aim of narrowing the circumstances in which the partial defence could rely on the basis of things said or done. The Government are persuaded that the current defence is too generous to those who kill in anger. The clauses have been designed to address those concerns, and to raise, not lower, the bar, which is why we cannot support the amendments.
I want to discuss the sexual infidelity limb in clause 42(6) in more detail. I accept that where passions run high and where people feel a strong sense of having been wronged in close, personal relationships, it can be devastating for the individuals involved. But we do not believe, as a Government in the current day and agewhatever our personal views may bethat sexual infidelity ought to be sufficient reason to reduce a murder charge to a finding of manslaughter, when the resulting passion, concern and upset has led to killing with an intention to kill or to do serious harm. We are not trying to legislate away peoples natural and normal upset, concern and anger about those circumstances, but we do not accept that that itself ought to lead to reducing a murder finding.
The history of the partial defence of provocation has led to a commonly held belief that that defence can be abused by men who kill their wives out of sexual jealousy and revenge over infidelity. That erodes the confidence of the public in the fairness of the criminal justice system. Even accepting that a great deal has been done in recent years to address the problem and that pleas of provocation on the basis of sexual infidelity do not succeed as much as they used to, it is still true that under the current law that particular defence can be raised and may succeed. We want to make it clear that it is unacceptable for a defendant who has killed an unfaithful partner to seek to blame the victim for what occurred. That deals in part with the general point about the entire partial defence. Homicide requires a killing with an intention to kill or to cause serious harm, and those who do that need to face the consequences, unless they have a very good reason.

Jeremy Wright: If I am about to spoil another line when the Minister tells us that she is not going to accept the amendment, I apologise now. I agree absolutely with her comment that sexual infidelity should not be sufficient to make out the defence that we are discussing, but clause 42(6)(c) states that
the fact that a thing done or said constituted sexual infidelity is to be disregarded.
Does she see the problem, which some have highlighted, that if the court were considering a case where the sexual infidelity in question involved sexual abuse, incest or something of that kind, it would be strange if the court were not able to consider the sexual infidelity aspect as part of the facts? That is even though it would be accepted that sexual infidelity in and of itself would not be sufficient to make out the defence. Is there not a difficulty with the word disregarded rather than, as she has said, using the word insufficient?

Maria Eagle: There is some misunderstanding about our intentions in that respect. I am happy to look further at the wordingI am not promising to do anything about it, if I conclude that it is about as good as we can getbut if Committee members could suggest formulations that are clearer and that achieve our objective, then I would be more than happy to listen.

Edward Garnier: The Minister does not have to listen; she just has to read amendment 111 on page 336, which covers the exact point made by my hon. Friend the Member for Rugby and Kenilworth.

Maria Eagle: I am coming to that. I just wanted briefly to deal with the point about clause 42(6)(c), which talked about things done or said constituting sexual fidelity, about which the hon. Member for Cambridge was mystified earliermembers of the Committee are all very young, except me, and did not seem to understand the point about President Jimmy Carter; perhaps some of us have longer memories than others.
Using the words done or said makes it clear that subsection (6)(c) refers to clause 42(4)the hon. Gentleman missed that. It may be difficult to know how things said would in and of themselves amount to sexual infidelity, but I understand the hon. Gentlemans point. It is important to carry over the language used in clause 42(4) to ensure that anything that could be argued to fit into that subsection should be disregarded, if it constitutes sexual infidelity. Replicating the wording from subsection (4) guards against creating a loophole, whereby someone might seek to establish that clause 42(6)(c) was designed to allow sexual infidelity to be relied upon as a qualifying trigger, when it could be argued that something that was said constituted such infidelity. We must consider whether we are making things less clear by having consistency of language. We could just accept an amendment to keep the language consistent, and I am perfectly happy to consider whether we have got the matter right.
Amendment 111 seems to be directed at allowing sexual infidelity to be considered when relevant, but only if it is not
a thing or things done or said
that is relied on as a qualifying trigger under clause 42(4) for the loss of self-control. That subsection is the qualifying trigger that arises when a persons
loss of self-control was attributable to a thing or things done or said...which
amounted to
circumstances of an extremely grave character, and
caused the defendant
to have a justifiable sense of being seriously wronged.
I am assuming that what I have just said about the purpose of the amendment is right. We do not have a problem with the reasoning, but we think that the current drafting covers the point.

Edward Garnier: To be honest, I can see that hon. Members want their lunch shortly, but the point that my hon. Friend the Member for Rugby and Kenilworth made needs to be answered. I anticipate the Court of Appeal being inventive and reading into clause 42(6)(c) the substance of amendment 111 simply because the provision will otherwise produce unjust results. A straightforward example is a stepfather who rapes a stepdaughter, which would prevent the partial defence being given to the wife in those circumstances. We must be very careful before rushing down the path of paragraph (c).

Maria Eagle: I understand that concern. The amendment is unnecessary, because the current drafting covers the sort of situation to which the hon. Gentleman has referred, but I am happy to reflect further on the matter. We believe that we are covering the same ground with the current wording, so I will not undertake to accept the amendment, but I will undertake to go away and consider it.
Amendment 176 refers to honour killings. Such cases involve individuals who seem to have transgressed the dictates, perceived or real, of a religion or community, or the mores of society or family by, for example, engaging in a relationship that is not approved of or marrying someone whom they should not marry according to their family. In response to the transgression, they are killed for bringing dishonour to their family or wider community. We all agree that such cases should not be allowed to benefit from the partial defence, but the clause does enough to exclude such cases.
First, the fact that
thing or things done or said (or both),
which triggered the loss of self-control must have
constituted circumstances of an extremely grave character, and...caused...a justifiable sense of being seriously wronged.
The test is objective, not subjective. Secondly, the jury must be satisfied of the reasonableness requirement in clause 41(1)(c) that
a person...with a normal degree of tolerance...might have reacted in the same way or in similar way
as the defendant. Thirdly, the defence is not available if the defendant acted in a considered desire for revenge. We believe that, when taken together, those factors should always have the effect of preventing the defence from succeeding in cases of honour killings.
There is an issue about defining honour killings. It is much easier to define sexual infidelity, say, than honour killings. Honour killing is not easy to define. We do not believe that the phrase violation of a code of honour is sufficiently precise. We think that the current wording deals with the point, and we all agree that we do not want to allow honour killings to sneak into the partial defence.
Amendment 417 is contrary to the Governments aim of preventing people from relying on the partial defence, if the qualifying trigger was caused by something that the defendant incited another person to do or say in order to give them a reason for using violence. We touched on that earlier. We do not want it to be possible for the defendant to use things saidfor example, verbal threatsas the basis for their fear of serious violence. That is to rule out things such as gang killings. I hope that hon. Members understand that.
For example, person X is a member of a gang who wants to attack person Y, who is a member of another gang. Person X shouts verbal abuse at person Y in the street with the intention of drawing him into an altercation. When person Y responds with verbal threats of extreme violence, person X attacks and kills him. We do not want person X to seek to rely on the partial defence on the basis that he feared serious violence from person Y, when he had provoked it in the first place through the verbal threats with an intention of creating the altercation. That is the point of the provision.
We have dealt with the done or said point. I have accepted amendment 174hurrah. On that basis and with many apologies for the length of time that I have taken to deal with these matters, I hope that the hon. Member for Cambridge will consider withdrawing the amendment, which is not the one that the Government have accepted.

David Howarth: On the basis of what the Minister has said, I will seek leave to withdraw amendment 168, but will move amendment 174 formally. I thank her for her remarks on honour killings. I hope that she is right and that what we are doing has the effect that she says. There are, of course, the classical problems of interpreting what clause 41(1)(c) says and the degree to which particular mores and groups will come into the definition of normal, but I assure her that we all agree with the intention of what she has said.
I also thank the Minister for what she said about going away and thinking about other aspects of the drafting. There is a broader consensus than previously imagined on what we are trying to do, but there are some difficulties in how it is being done. I shall go away and think about her procedural explanation of amendments 170 and 171, and I hope that she is right. There is a problem of putting into a statute something that is already the law, because it makes lawyers think that it means something else, which is always a difficulty.
My overall conclusion is that there is a problem of treating the fear defence and the anger defence with the same basic concepts. I do not think that loss of control should come into the fear defence at all, because it has nothing to do with the fear argument. On the anger part of the problem, loss of control is not enough. Simply losing control of oneself because one is angry should not be a defence, whereas in the fear part of the clause, it seems to me to be irrelevant.

Edward Garnier: Is it the distinction between an external influence and an internal influence?

David Howarth: It is partly that, but it is actually the quality of the emotion concerned. I think that the fear cases and anger cases are so different that they should be treated with different defences.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 266, in clause 41, page 25, line 24, after could, insert reasonably.(Maria Eagle.)

Clause 41, as amended, ordered to stand part of the Bill.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four oclock.